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Murthy-FINAL2.Pdf health and human rights Sharmila Murthy, JD, MPA, is a joint Fellow in the Human Land security and the challenges of Rights to Water and Sanitation realizing the human right to water Program at the Carr Center and sanitation in the slums of Mumbai, for Human Rights Policy and India in the Sustainability Science Program at the Mossavar- Rahmani Center for Business Sharmila L. Murthy and Government, both at Harvard Kennedy School of Government, Cambridge, MA, USA. Abstract Addressing the human right to water and sanitation in the slums of Mumbai, India Please address correspon- requires disentangling the provision of basic services from a more complicated set of dence to Sharmila L. Murthy, questions around land security and land ownership. Millions of slum-dwellers in Carr Center for Human Rights Mumbai lack adequate access to safe drinking water and sanitation, which places Policy, Harvard Kennedy them at risk for waterborne diseases. Many slums are located in hazardous areas such School of Government, 79 JFK as flood plains, increasing their susceptibility to climate change-related weather pat- Street, Cambridge, MA 02138, terns. Access to water and sanitation in slums generally hinges on whether a dwelling email: sharmila_murthy@hks. was created prior to January 1, 1995, because those constructed created prior to that harvard.edu. date have greater land security. Although the so-called “1995 cut-off rule” looms Copyright © 2012 Murthy. This large in Mumbai slum policy, a closer reading of the relevant laws and regulations is an open access article dis- suggests that access to water and sanitation could be expanded to slums created after tributed under the terms of the January 1, 1995. State and municipal governments already have the authority to Creative Commons Attribution expand access to water services; they just need to exercise their discretion. However, Non-Commercial License (http://creativecommons.org/ slums located on central government land are in a more difficult position. Central licenses/by-nc/3.0/), which government agencies in Mumbai have often refused to allow the state and municipal permits unrestricted non-com- governments to rehabilitate or improve access to services for slums located on their land. mercial use, distribution, and As a result, an argument could be made that by interfering with the efforts of sub- reproduction in any medium, provided the original author national actors to extend water and sanitation to services to slum-dwellers, the central and source are credited. government of India is violating its obligations to respect the human right to water and sanitation under international and national jurisprudence. Introduction Millions of slum-dwellers in Mumbai lack access to safe drinking water and sanitation, which negatively impacts their health and compromises their ability to lead lives full of dignity, as envisioned by the Universal Declaration of Human Rights. This paper seeks to contribute to the bur- geoning literature on slum policy and access to water and sanitation in Mumbai by examining in greater depth the legal basis of the so-called 1995 cut-off rule. A more nuanced reading of the underlying laws and regulations reveals that there may be potential political or legal avenues for extending basic water services to slums in Mumbai, thereby further- ing the realization of the human right to safe drinking water and sanita- tion for all. The first section of this article examines how rapid urbanization in India has contributed to poor living conditions in the slums of Mumbai, which are often located in environmentally hazardous places, such as flood plains. The water supply in Mumbai is unequally distributed and biased volume 14, no. 2 December 2012 health and human rights • 61 Murthy toward wealthier communities, who benefit from able water and sanitation services highlights the chal- piped infrastructure. In contrast, access to water and lenges of realizing the human right to water and sani- sanitation services in slums is generally poor and tation. The legal obligation under the International waterborne diseases are prevalent. Covenant on Economic, Social and Cultural Rights (ICESCR) is not to realize the recognized rights over- The lack of access to sufficient amounts of good night, but to ensure that maximum available resourc- quality, affordable water and sanitation services in es are being used to ensure their progressive realiza- many Mumbai slums stands in sharp contrast to the tion in a non-discriminatory way. Under international ideals of a human right to safe drinking water and law, states have an obligation to protect, respect, and sanitation for all. As discussed in the second sec- fulfill human rights. The analysis suggests that under tion of this article, the normative content of the human rights law, the central government of India human right to safe drinking water and sanitation, has not comported with its duty to respect because it as recognized by United Nations, entitles everyone prevents the state and municipal actors from provid- to sufficient, safe, acceptable, physically accessible, ing access to basic services. A narrowly framed argu- and affordable water and sanitation services for per- ment could also be made under Indian law that the sonal and domestic uses. The Indian Supreme Court central government’s conduct violates the right to life has also recognized the right to water and sanitation provision of India’s Constitution. under the “right to life” provision of its constitution. In short, the implementation of the human right to The third section of the paper attempts to reconcile water and sanitation in Mumbai requires disentan- the gap between human rights law and domestic gling the provision of basic services from a more policies that govern access to water and sanitation complicated set of questions around land security in Mumbai slums. It grapples with a complicated set and interpreting existing laws and regulations in a of planning laws and regulations, focusing on the way that is consistent with India’s human rights obli- municipal Water Charges Rule and the state’s Slum gations. Areas Act. Access to water in Mumbai slums gener- ally depends on whether the dwelling was construct- ed prior to January 1, 1995, even if the dwelling was Health and environmental impacts of not considered legal when first built. The evolution slums of slum policy in Mumbai is discussed in order to provide context for what is commonly known as the “1995 cut-off ” rule. Focusing on the “notification” Rapid urbanization provision of the Slum Areas Act, the article sug- gests that the state and municipal governments have Rapid urbanization and dense slum populations the legal discretion to expand access to slums that compound the challenges of providing access to safe fall outside of the 1995 cut-off rule. To reconcile water and sanitation services. South Asia has wit- domestic and human rights law, state and munici- nessed a rapid rise in urbanization, and approximately pal officials would need to exercise this authority. 35% of India’s population now lives in urban areas.1 However, this interpretation does not apply to slums More than half of the population of India’s largest located on central government property, where state city, Mumbai, which is located in the western state law is not applicable. The central government agen- of Maharashtra, resides in urban slums, even though cies that own this land generally refuse to allow the slums occupy only about 8.75% of the city’s land.2 local government to extend services to these commu- Of the approximately 12 million people in Mumbai, nities. As a result, “non-notified” slums located on more than 6 million live in slums, approximately 1 central government land are in the most vulnerable million live on the pavement, and another 2 million position with respect to water and sanitation access. live as tenants in rented places, many of which are old and dilapidated.3 Population density is very high in This section considers the slum policies of Mumbai the slums, averaging around 80,000 people per square from the perspective of international human rights kilometer, as compared to 20,000 people per square law and Indian constitutional jurisprudence. That mil- kilometer in Greater Mumbai.4 According to recent lions of Mumbai’s slum-dwellers do not have access estimates, the number of slum dwellings in Mumbai to adequate amounts of safe, acceptable, and afford- has grown 40% since 1995.5 62 • health and human rights volume 14, no. 2 December 2012 health and human rights cantly higher than that paid for municipal networked Slums have increased in response to the lack of ade- water.17 quate housing and services.6 The rise in slums has led policymakers in many developing countries to The disposal of human waste is also a major health attempt to control rural-urban migration. In India, and environmental challenge. Although approximate- “[m]igration to cities was, and often still is, seen by ly 90% of wastewater in Mumbai is collected, the vast the political leadership and intelligentsia as a threat majority is untreated and discharged through ocean to the survival of cities. To invest in urban develop- outfalls or local waterways.18 Most slum-dwellers ment and to focus on housing for the urban poor rely on poorly maintained public toilets, which are appeared to them to be an invitation to fresh migra- often unhygienic and pose public health and environ- tion.”7 The people living in slums “have clearly not mental risks for the
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